June 14, 2013
By Scottie Thomaston
The Supreme Court has said that next Monday and Thursday more opinions in argued cases will be released. There are nineteen outstanding ones. As usual, we won’t know which opinions are ready until then; the standard practice is that the Court releases opinions when they are finished, and only then. There’s no reason to believe they are just holding some opinions. Given the days left in the term (which Court watchers expect will end on Thursday, the 27th) the Court could release at least four opinions at a time until the end.
The Court hasn’t said which days it will release opinions in the last week of June, but this week they issued opinions on Monday and Thursday, and next week it’s the same schedule. Assuming that schedule holds, we would see opinions Monday, the 24th, and Thursday, the 27th. Without official notice, of course, this is speculation, but it’s based on past history as well. Either way, we could get the opinions in the marriage cases next Monday or Thursday. The following week still seems the most likely but with nineteen opinions left there will be a flurry of them coming out and the Court may decide they are ready.
Since none of the opinions yesterday were from the March sitting, there are still five outstanding cases from that sitting. Five decisions have already been released (the four moderates each have one majority opinion, and Justice Thomas has one as well.) As we wrote previously, the Court likes to distribute its majority opinion assignments evenly, so Chief Justice Roberts and Justices Alito, Scalia, and Kennedy will likely have one of the remaining opinions, with one Justice writing two of them. (As we have written, speculation on opinion assignments shouldn’t be taken as definitive; we don’t know for certain who will write a majority opinion until it’s handed down.) But it would seem unlikely that one of the moderates would write a majority opinion in one of the marriage cases, based on the fact that they’ve already written one, and the fact that in order to get a fifth vote, they would need a more conservative member of the Court to join the majority; a Justice who is conservative may not want to join a far reaching opinion written by a more liberal Justice. One other note: majority opinion authors can change; it’s rare, but sometimes views change and Justices leave the majority. This could complicate the opinion drafting process if it were to happen. But there are several reasons an opinion may take a long time to draft, including that a case (like the DOMA case) may require decisions on several legal issues.
If the marriage cases aren’t released next week, one interesting thing to keep tabs on is whether any are from the March sitting. According to SCOTUSBlog’s statistics, the March cases still awaiting decisions are Arizona v. The Inter Tribal Council of Arizona, Inc., Mutual Pharmaceutical Co. v. Bartlett, and Federal Trade Commission v. Actavis. At least in terms of opinion distribution, if one of those are released it will give Court watchers a better idea of whether the Court is diving majority opinions evenly for that sitting, or whether they are more randomly given out.
The oldest opinions still awaiting a decision are Fisher v. University of Texas at Austin (October sitting) and Vance v. Ball State University (December sitting). Those seem more likely to be released before the marriage cases simply because the latter cases were argued in late March.
As always, we won’t have definitive answers until the decisions come down. The Court is infamously secretive, there are rarely any leaks, and even the dates the Court schedules to release opinions won’t be known until the Court is ready for people to know.